1st. All insurrections against the person of the king, whether they be to dethrone, imprison, or force him to alter his measures of government, or to remove evil counsellors from about him, 1 East P. C. 66.

2dly. Holding a fort, &c. against the king, 1 East P. C. 68. 3dly. Joining with rebels in any act of rebellion, 1 East P. C.

4thly. Giving assistance or intelligence to rebels, 1 East R. C.

5thly. Constructive levying war by insurrection to reform supposed national grievance, &c. (2) 1 East P. C. 72.

The acts to establish that the defendant was "adherent to the king's enemies in his realm, giving them aid and comfort in the realm or elsewhere," as high treason, prohibited by 25 Ed. 3 st. 5. c. 2. are not limited or defined, but are principally

1st. Sending information to enemy of the state of forces, &c. 1 East P. C. 78.

2dly. Making war on king's allies. 1 East, P. C. 79.
Sdly. Sending forces to assist enemy. 1 East, P. C. 78.

4thly. Any other assistance.

[*63] The acts to constitute high treason under 36 Geo. III. c. 7. *are "within the realm, or without, compassing, imagining, inventing, devising, or intending."

1st. "Death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment or restraint of the person of the king, his heirs or successors," or

2dly. To deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm or of any other of his majesty's dominions or countries," or

3dly. "To levy war against his majesty, his heirs, or successors, within this realm, in order by force or constraint to compel him or them to change his or their measures or counsels," see I East P. C. 63. 66. 67. or

4thly. "To levy such war, in order to put any force or constraint upon, or to intimidate or overawe both, or either houses of parliament," or

5thly. "To move or stir any foreigner or stranger with force to invade this realm, or any other of his majesty's dominions or countries, and in the obeisance of his majesty, his heirs, and successors," 1 East P. C. 63–78.

"Such compassings, imaginations, inventions, devises, or intentions, or any of them being expressed, uttered, or declared by publishing any printing or writing, or by any overt act or deed."

II. AS TO THE INDICTMENT. The VENUE must be laid in a county in which an overt act of treason can be proved, but after proof of an overt act in one county, evidence may be given of any other overt acts of the same species of treason in other counties, 1 East P. C. 125. 4 East Rep. 171. 1 Burr. 647, ante 1 vol. and it is sufficient to lay the overt act at any place in the county, though it be proved to have been in another place, 1 East P. C. 125. In stating an overt act in sending letters to enemy abroad, it is better to state that the letters were sent from the place where the venue is laid to be delivered, in parts beyond the seas, 1 East P. C. 124 (1) Intercepted letters are received as overt acts of trea

(1) [Pennsylvania. It is enough to lay in the indictment, that the defendant sent intelligence, without

setting forth the particular letter, or its contents. 1 Dal. Rep. 35.]

son in the county in which they were written, 2 Camp. 506. For treason out of the realm, the commission and indictment allege that the offence was committed without the realm.

Leach, ch. 4. Ed. 157.(1)

Platt's case,

Every indictment for high treason must lay the offence to have been committed traitorously, 2 Lord Raymond, 870. Comb. 259. 1 East P. C. 115. and should conclude against the duty of the defendant's allegiance. Comb. 259. 1 Lord Raymond, 1, 2. Salkeld, 630.-1 East, P. C. 115. A charge of doing any thing seditiously, does not amount to a charge of treason, 1 East, P. C. 115. Where the traitor is a natural born subject, it is usual to * lay the offence [*64] to have been done against his "natural" allegiance, but that is not necessary, for in the general word allegiance is comprised every species of it, and the addition of the word "natural" is improper, where the defendant is a foreigner. Yet if that fact appeared upon the face of the indictment, the word "natural" might be rejected as repugnant, and surplusage. 1 East, P. C. 115. Holt, 686. It is sufficient, however, if the species of treason such as compassing the king's death be laid to be done "traitorously," there is no necessity to charge every separate overt act, relating thereto to be so done. And it is sufficient in stating such several overt acts to couple them together by an "and" without repeating "that the jury further present," &c. or the like, but that form is the proper one in laying distinct species of treason, 1 East, P. C. 116. see Holt, 686, 7. 4 Harg. St. Tr. 702.

In every indictment for high treason, upon the Stat. 25 Ed. III. for compassing the death of the king or of such of his family, as are therein named, or for levying war or adhering to his enemies, the particular species of treason must be charged in the very terms of the statute, as that the defendant " did traitorously compass and imagine." And then some overt act must be laid as the means made use of to effectuate the traitorous purpose, 1 East, P. C. 58. 116. 2 East, 11. 6 East, 426. 1 Hale, 150. Kel. 8. For though the words of the statute " and thereof be proveably,” (i. e.

(1) [New-York. The offence of adhering and giving aid and comfort to the public enemies of the United States, is not treason against the People of the State of New-York. 11 John. Rep. 549. An indictment, charging such an offence will be VOL. II.

F

quashed. Ibid. Treason may be com.
mitted against the state, as by oppo-
sing the laws, or forcibly attempting
to overturn or usurp the govern-
ment, &c. Ibid. Treason against
the United States is not cognisable in
the State Courts. Ibid.]

on sufficient proof,) " attainted by open deed," &c. come immediately after the clause of adhering to the king's enemies, yet they refer to all the treasons before mentioned. The overt acts so laid, are in truth, the charge, to which the prisoner must apply his defence. And, therefore, it is in no case sufficient, merely to allege, that the prisoner "compassed the king's death," &c. or, "that he levied war against him," or " adhered to his enemies," for upon a charge so general and indefinite, he cannot know what acts he is to defend. The particular acts of compassing and adherence must be set forth, and in the other instance it must be alleged, that he assembled with a multitude, armed and arrayed in a warlike manner, and levied war, 1 East, P. C. 58, 116. 2 East, 11. 6 East, 426. 1 Hale, 150. Kel. 8. The indictment on 25 Ed. III. st. 5. c. 2. for “levying war against the king in his realm," must be expressly so laid, 1 East, P. C. 66. though we have seen that there may be five overt acts afterwards laid. The indictment generally charges, that the defendants were armed, and arrayed in a warlike manner, and where the case admits of it, with swords, guns, drums, colours, &c. (see precedent, post, and Cro. C. A. 290. Trem. P. C. 3. Fost. ch. 5. but this does not

[*65] seem necessary, * 1 East, P. C. 67, 116. Levying war being an overt act of itself, no other overt act need be alleged, if it be expressly shown that what was done by the defendant, was in a warlike manner; but merely to allege that the defendant levied war, would not suffice on this statute,(1) 1 East, P. C. 116,7. Trem. P. C. 3. In an indictment on 25 Ed. 3. st. 5. c. 2. for "Adhering to the king's enemies in his realm, giving them aid and comfort in the realm or elsewhere," this must be laid as the offence, though we have seen that there may be several overt acts establishing such offence. It is necessary to aver, that the persons adhered to were the king's enemies, as well as that the defendant adhered to them, but it is not necessary to allege expressly that such adherence was against the king, that being apparent, nor is it necessary that the parties should come to an action, but the special matter of adhering must be set forth, 1 East, P. C. 78.

(1) [United States. On a trial for treason, the overt act must be proved as laid. U. S. vs. Burr, Appendix, 4 Cranch. 490. An indictment charging a person with being present at an overt act of treason, can

not be supported, by proving that the person accused caused the act to be done by others in his absence. No presumptive evidence, no facts from which presence can be inferred, will be sufficient.]

One species of treason may be laid and proved as an overt act of another, 1 East, P. C. 62. 117. and therefore it is usual to insert in the indictment one count, for "compassing the king's death," showing the overt acts, and then to add a second "for adhering to the king's enemies," and repeating the same overt acts, see precedents, post, 73 and 78. But it seems that no overt act ⚫can be given in evidence under any branch of treason, unless it be expressly laid as an overt act of such treason, although it be laid as an overt act of some other treason in the same indictment, 1 East, P. C. 117.

But though some overt acts must be laid and proved in the instances before mentioned, yet it is not necessary that the whole detail of the evidence should be set forth. The common law never required this exactness, and the statute 7 William, 3. c. 3. s. 1. does not make it necessary to charge particular facts where it was not necessary before. It is sufficient that the charge be stated with reasonable certainty, so that the prisoner may be apprised of the nature of it. Thus the laying that A. and B. met and proposed the means how to effect the king's death is sufficient, without alleg ing the particular means upon which they agreed, which is matter of evidence. So if the overt act consist of words or a letter, the contents of it need not be set forth; it is sufficient to state the substance and intent of them, 4 East, 171. 6 East, 426, 1 East, P. C. 121. 124. The statute of William directs that "no evidence shall be admitted or given of any overt act that is not expressly laid in the indictment, against any person or persons whatsoever." Id. ibid.(1) The true sense of this clause is, that no overt act amounting to a distinct independent charge, though falling under the same head of treason shall be admitted in evidence, unless it be expressly laid in the indictment, but an overt act may be given in evidence, though * it be not expressly laid or not well laid in the [*66] indictment, if it amount to direct proof of any overt act which is well laid, East, P. C. 121.

On the other hand, if the overt act offered in evidence, and not laid in the indictment be no direct proof of any of the overt acts

(1) [United States. An indict ment charging a person with being present at an overt act of treason, cannot be supported by only proving that the person accused caused the

act to be done in his absence. No
presumptive evidence, no facts
from which presence can be infer
red, will satisfy the constitution and
law. 4 Cranch, Appendix, 499.]